Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
2025 INSC 1474
CRIMINAL APPEAL NO. 5588 OF 2025
(Arising out of SLP (Crl.) No. 8703/2019)
M/S SRI OM SALES …Appellant(S)
VERSUS
ABHAY KUMAR @ ABHAY PATEL & ANR. …Respondent(S
J U D G M E N T
MANOJ MISRA, J.
1. Leave granted.
2. This appeal impugns judgment and order of the High Court
1
of Judicature at Patna dated 20.06.2019 in Criminal
Miscellaneous No. 3744 of 2015 whereby, while exercising powers
Signature Not Verified
Digitally signed by
CHETAN ARORA
Date: 2025.12.19
16:05:21 IST
Reason:
1
The High Court
Page 1 of 10
Criminal Appeal @ SLP (Crl.) No. 8703/2019
2
under Section 482 of the Code of Criminal Procedure, 1973 , High
Court quashed the entire criminal proceedings arising out of
Complaint Case No. 1563(C) of 2013.
3. Briefly stated, the facts giving rise to the appeal are that the
appellant lodged a complaint under Section 138 of the Negotiable
3
Instruments Act, 1881 against the first respondent by alleging,
inter alia , that the first respondent took delivery of goods from the
complainant and in lieu thereof issued cheque, dated 04.03.2013,
of Rs. 20,00,000. On 04.03.2013 itself, the complainant presented
the said cheque with its banker for collection. However, the same
was returned unpaid on 11.03.2013 with a remark of insufficient
funds in the drawer’s account. The complainant thereafter met the
first respondent on 12.03.2013 who assured that if the cheque is
presented after a week, it will be honored. In consequence, cheque
was re-presented on 17.03.2013 but it was again returned unpaid
on 18.03.2013, with same remark. As a result, on 02.04.2013 a
legal notice of demand was sent to the first respondent. In its reply
dated 08.04.2013, the first respondent denied having issued the
2
The Code
3
N.I. Act
Page 2 of 10
Criminal Appeal @ SLP (Crl.) No. 8703/2019
cheque and refused to make payment. Since payment was not
made within the stipulated period, the complaint was filed.
4. The learned Magistrate took cognizance on the complaint and
vide order dated 27.09.2013 summoned the first respondent under
Section 138 of N.I. Act. Aggrieved by the summoning order dated
27.09.2013, the first respondent filed an application (i.e., Criminal
Miscellaneous No. 3744 of 2015), under Section 482 of the Code,
before the High Court.
5. By the impugned order dated 20.06.2019, the High Court
quashed the complaint proceedings, inter alia , on the ground that
the cheque was not issued for the discharge, in whole or in part,
of any debt or other liability.
6. Aggrieved by the impugned order, the complainant has filed
this appeal.
7. We have heard learned counsel for the parties and have
perused the materials available on record.
8. In short, the submission on behalf of the appellant is that the
High Court exceeded its jurisdiction under Section 482 of the Code
by holding an enquiry as to whether the cheque in question was
for the discharge, in whole or in part, of any debt or other liability
Page 3 of 10
Criminal Appeal @ SLP (Crl.) No. 8703/2019
inasmuch as under Section 139 of the N.I. Act a presumption is
raised, unless the contrary is proved, that the holder of a cheque
received the cheque of the nature referred to in Section 138 for the
discharge, in whole or in part, of any debt or other liability. Though
this presumption is rebuttable, such presumption can only be
rebutted in trial and therefore, the complaint which encapsulates
all the essential ingredients of an offence punishable under Section
138 of N.I. Act could not have been quashed at the threshold by
examining whether the cheque concerned was received by the
holder of the cheque for the discharge, in whole or in part, of any
debt or other liability.
9. Per contra , the learned counsel for the first respondent
submitted that the complaint was mala fide and therefore, the
High Court was well within its jurisdiction to consider whether the
cheque had been issued for the discharge, in whole or in part, of
any debt or other liability. It was argued that once the High Court
has recorded a finding that the cheque was not issued for the
discharge, in whole or in part, of any debt or other liability, no
interference with the order of the High Court is called for.
10. We have considered the rival submissions and have perused
the materials on record.
Page 4 of 10
Criminal Appeal @ SLP (Crl.) No. 8703/2019
11. The law is well settled that while considering a prayer to
quash the criminal complaint and the consequential proceedings
at the threshold, the Court is required to examine whether the
allegations made in the complaint along with materials in support
thereof make out a prima facie case to proceed against the accused
or not. If upon reading the complaint allegations and perusing the
materials filed in support thereof, a prima facie case is made out
to proceed against the accused, the complaint cannot be quashed,
particularly, by appreciating the evidence/ materials on record
because the stage for such appreciation is at the trial. No doubt,
in exceptional circumstances, the Court may take notice of
attending circumstances to conclude that continuance of the
proceedings would amount to an abuse of the process of the Court,
or where quashing of the proceedings is necessary to secure the
ends of justice.
12. In the instant case, the complaint clearly spells out the
necessary ingredients for commission of an offence punishable
under Section 138 of the N.I. Act. It is also alleged in the complaint
that the cheque was issued in the discharge of liability qua goods
supplied by the complainant. The cheque was brought on record
along with the dishonor memo of the bank concerned which
Page 5 of 10
Criminal Appeal @ SLP (Crl.) No. 8703/2019
indicated that it was returned unpaid for insufficient funds in the
drawer’s account. The complaint also indicated that complainant
had served notice of demand within the specified period and
despite service of notice of demand, no payment was made. In such
circumstances, the necessary ingredients of an offence punishable
under Section 138 of N.I. Act were disclosed by the complaint
warranting issuance of process to the accused (i.e., the first
respondent).
13. However, the High Court, in its jurisdiction under Section
482, proceeded to test whether the cheque was issued for the
discharge, in whole or in part, of any debt or other liability. In our
view, such an exercise was unwarranted because, under Section
139 of the N.I. Act, there is a presumption that the holder of a
cheque received the cheque of the nature referred to in Section 138
for the discharge, in whole or in part, of any debt or other liability.
This presumption can be rebutted by evidence led in trial. A fortiori ,
the said issue can appropriately be decided either at the trial, or
later, upon conclusion of trial, by the appellate/ revisional court.
Page 6 of 10
Criminal Appeal @ SLP (Crl.) No. 8703/2019
4
14. In Maruti Udyog Ltd. v. Narender and others , this Court
held that a presumption must be drawn that the holder of the
cheque received the cheque of the nature referred to in Section
138, for the discharge of any debt or other liability unless the
contrary is proved and, therefore, the High Court was not justified
in entertaining and accepting the plea of the accused at the initial
stage of the proceedings and quash the complaint.
5
15. Likewise, in Rangappa v. Sri Mohan , it was held that the
presumption mandated by Section 139 of the N.I. Act includes the
existence of a legally enforceable debt or liability. It was observed
that such a presumption is rebuttable, and the accused must raise
its defense in the trial.
6
16. In Rajeshbhai Muljibhai Patel v. State of Gujarat , it was
held that the High Court should not quash the criminal complaint
under Section 138 of N.I. Act by going into disputed questions of
fact regarding the cheque in question being issued for the
discharge of debt or liability. Moreso, when Section 139 of the N.I.
Act raises a statutory presumption as regards the cheque being
issued for discharge of debt or liability.
4
(1999) 1 SCC 113
5
(2010) 11 SCC 441
6
(2020) 3 SCC 794
Page 7 of 10
Criminal Appeal @ SLP (Crl.) No. 8703/2019
7
17. In Rathish Babu Unnikrishnan v. State (NCT of Delhi) ,
this Court held that when there is a legal presumption under
Section 139 of N.I. Act, it would not be judicious to carry out a
detailed enquiry on a disputed question of fact at a pre-trial stage
to quash the complaint. The relevant observations in the judgment
are extracted below:
“17. The proposition of law as set out above makes it
abundantly clear that the court should be slow to grant the
relief of quashing a complaint at a pre-trial stage, when the
factual controversy is in the realm of possibility particularly
because of the legal presumption, as in this matter. What is
also of note is that the factual defense without having to
adduce any evidence need to be of an unimpeachable quality,
so as to altogether disprove the allegations made in the
complaint.
18. The consequences of scuttling the criminal process at a
pretrial stage can be grave and irreparable. Quashing
proceedings at preliminary stages will result in finality
without the parties having had an opportunity to adduce
evidence and the consequence then is that the proper forum
i.e., the trial court is ousted from weighing the material
evidence. If this is allowed, the accused may be given an
unmerited advantage in the criminal process. Also, because
of the legal presumption, when the cheque and the signature
are not disputed by the appellant, the balance of convenience
at this stage is in favor of the complainant / prosecution, as
the accused will have the opportunity to adduce defense
evidence during the trial, to rebut the presumption.
19. Situated thus, to non-suit the complainant, at the stage
of the summoning order, when the factual controversy is yet
to be canvassed and considered by the trial court will not in
our opinion be judicious. Based upon a prima facie
impression, an element of criminality cannot entirely be ruled
7
(2022) 20 SCC 661
Page 8 of 10
Criminal Appeal @ SLP (Crl.) No. 8703/2019
out here subject to the determination by the trial court.
Therefore, when the proceedings are at a nascent stage,
scuttling of the criminal process is not merited.”
18. Having regard to the aforesaid decisions of this Court as also
the provisions of Section 139 of the N.I. Act, we are of the
considered view that the High Court committed an error by
conducting a roving enquiry, at the pre-trial stage, as regards the
cheque being issued for the discharge of debt or liability. Such an
exercise, in our view, was not merited in exercise of power under
Section 482 of the Code more so when the complaint allegations
disclosed that the cheque was issued for discharge of liability. As
fulfillment of the necessary ingredients of Section 138 N.I. Act are
prima facie made out from the complaint allegations, in our view,
neither the summoning order nor the complaint could have been
quashed by the High Court at the pre-trial stage.
19. For the aforesaid reasons, this appeal is allowed. The order
of the High Court is set aside. The criminal complaint in question
is restored on the file of the concerned Magistrate and shall be
dealt with in accordance with law.
20. We make it clear that we have not expressed any opinion as
to whether the cheque in question was issued for the discharge, in
Page 9 of 10
Criminal Appeal @ SLP (Crl.) No. 8703/2019
whole or in part, of any debt or liability. The said issue shall be
decided by the Trial Court independently without being prejudiced
by any of the observations made in the order of the High Court
which has been set aside by this order.
21. Pending application(s), if any, shall stand disposed of.
……………………………J
(MANOJ MISRA)
……………………………J
(UJJAL BHUYAN)
NEW DELHI;
DECEMBER 19, 2025
Page 10 of 10
Criminal Appeal @ SLP (Crl.) No. 8703/2019